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Published: Fri, 02 Feb 2018
The Control Of Image Rights
Everyone who features in the media has an image- from A list to Z list celebrities; Hollywood stars to soap stars, musicians, sports personalities, presenters, politicians, criminals, people in the news, even ordinary people filmed or photographed in the background going about their everyday life, for good or ill.
The control of “image rights” in law is emerging and set to develop in the UK. This is perhaps unsurprising in our celebrity obsessed society but at present, there is an absence of specific legal protection for the proprietary rights of the individual to their ‘image’; with no codified regime, cases brought on grounds of exploitation must rely on an assortment of statutory provisions and case law, falling somewhere within the scope of publicity, privacy, personality or property rights, not always indubitably.
Advances have been made in America; ‘publicity rights’ have been recognised and image rights have been afforded statutory protection in certain states. Advances have also been made in civil law countries, most notably France which provides explicit image rights protection. A recent example was a case brought brought by Carla Bruni against Ryanair. She sued Ryanair in the French Courts when, just before she married Nicholas Sarkozy, her image was used in a Ryanair advertisement. Ryanair tried to make the case that because she was engaged to be married to a high profile public figure, she lost the control of her image which had value to her when she was a model and a singer. Ryanair lost but the damages they were ordered to pay were fairly modest.
CENTRAL LEGAL PROBLEMS
The term ‘image’ has been subject to some debate. What aspects of our identity are deemed to make up our image and are thus protected from unlicensed use in law? Is our image only afforded protection if we have a reputation to uphold? Do we have no claim if we cannot prove that the use of our image has in some way been detrimental to us?
It has been suggested that the all encompassing term ‘persona’ is more appropriate when referring to the exploitation of personal aspects of our identity and ‘identity’ has been defined as a person’s “uniqueness which individualises him as a particular person and this distinguishes him from others… Identity is manifested in various indicia by which a person can be recognized, such as his name, image, voice, fingerprints, handwriting etc.”  This definition can be extended to include any personal attribute by which an individual is recognisable; likeness, physical or style characteristics, nicknames, slogans, trademarks, voice. However, is it not our image is we are not recognisable by it?
Celebrities can an live off the use of their image and there are a number of celebrity cases which appear frequently in the relevant literature. The cases have set a precedent for future celebrity cases but what about about a private individual who seeks a remedy for the exploitation of his/her image? It is doubtful that the arguments applied in the following cases would be suitable for a private individual to rely upon as they mainly rely on the claimant’s celebrity status.
For example, ‘passing off’ is a long established tort under the common law and can be relied upon in cases where the consumer is likely to be misled or confused by the presentation of a product; where a product has been ‘passed off’ as being endorsed by a person whose image is in some way associated with it, without permission. In the much cited case of Irvine v Talksport Ltd in which a UK radio station was rebranding as a sports radio station. Promotional packs were distributed to potential advertisers, including a leaflet with a photograph of Eddie Irvine on the front cover. The image had been altered for promotional purposes, with the mobile phone shown in the original photograph substituted for a radio bearing the Talksport logo. The High Court awarded damages of £2000 as the unauthorised use of Mr Irvine’s image amounted to passing off by way of false endorsement- it was used in such a manner that appeared to be endorsing Talksport. The Court of Appeal increased the damages awarded to £25,000 on the basis that this was the value of endorsement fees that Mr Irvine could command for comparable endorsements in the advertising market. The judgements suggest that the tort of passing off was really being stretched in this case but the case is important as it demonstrates that English courts are prepared to recognise that a commercial value can attach to a celebrity’s image and furthermore, regard the appropriation of that image without consent as the unlawful appropriation of a form of property right. As a result, celebrities manage their images very carefully and are heavily branded eg. Dvid Beckham and Roger Fedderrer! At the same time they are increasingly relying on the law of ‘misuse of private information’ to obtain injunctions to prevent information about their private lives (usually their sex lives) being published.
In the 2005 case of Douglas and Zeta Jones v Hello Ltd, the plaintiffs relied on the tort of breach of confidentiality to secure an award of £3,750 each for mental distress and a combined sum of £7000 for additional expenses and disruption. The ruling was upheld by the Court of Appeal. Michael Douglas and Katherine Zeta Jones were married in November 2000 at the Plaza hotel, New York. They contracted with OK! magazine for the right to take and publish photographs. An uninvited photographer managed to gain entry and sold his photographs to Hello magazine, which rushed a special edition ahead of the authorised OK! publication. From the point of view of image rights protection, it was held that the wedding was a private occasion and should be protected by the English law of confidentiality. Even though the sum awarded by way of damages was small, the fact that damages were awarded for breach of confidentiality on foot of a claim for breach of privacy and confidentiality, was significant.
In Campbell v Mirror, the House of Lords, by a 3 : 2 majority, reinstated a High Court award in favour of the supermodel Naomi Campbell for breach of privacy by way of breach of an obligation on the newspaper to keep certain formation about her private life confidential. The information in question included a photograph taken of her in a public street. In February 2001, the Daily Mirror published articles stating that, contrary to public assertions that she did not abuse drugs, Ms Campbell was a drug addict and had been attending Narcotics Anonymous meetings. One of the articles gave detailed information about her attendance at the NA meetings and was accompanied by a photograph of the supermodel leaving a meeting in London. While the publication of the information that Ms Campbell had lied about her drug addiction was held to be lawful and in the public interest, certain details about her attendance of the NA programme and in particular, the publication of the photograph of her leaving an NA meeting and taken without her authorisation, was held to amount to a publication of confidential information and an invasion of her privacy.
Baroness Hale speaking for the majority in the Naomi Campbell case, ‘
The position we have reached is that the exercise of balancing article 8 and article 10 may begin when the person publishing the information knows or ought to know that there is a reasonable expectation that the information in question will be kept confidential
Paragraph 134 pierce morgan- All well and good for the celebrity but what happens if I am up to no good and caught in the act on google maps? the
In England, the law of privacy has evolved from the existing common law of breach of confidentiality and to an increasing extent by reference to the Uk’s obligations under the European Convention of Human Rights (incorporated into UK domestic law by the Human Rights Act, 1998). Privacy in the UK does not however have the status of a constitutionally protected right.
SUITABILITY FOR IN DEPTH STUDY…..
Up until now I have only made reference to celebrity image rights- there is an obvious distinction between celebrities and those who object to the use of their image without consent, simply as a privacy issue. Many questions present themselves in relation to image rights of the private individual and legally, it is a very grey area, with almost a complete lack of case law; remedies will be the outcome of a balancing act between Article 8 (right to respect for private and family life) and Article 10 (right to freedom of expression) of the Human Rights Act 1998.
When do the acts of private individuals fall into the area of public interest?
The leading case to date on the control of image rights is the Princess Caroline of Monaco case, Von Hannover v Germany. Princess Caroline sought a remedy for the invasion of her privacy over a period of ten years, having been unsuccessful at national level in bringing an action for the publication of photographs of her as she went about her everyday life. It was held that her Article 8 right to respect for private life had been infringed and that publishing photographs of her as picking her children up from school, played sport, shopping etc could not be be justified as a matter of public interest, it was unrealistic to expect everywhere she went to be ‘secluded’ and she had not sought out publicity, she had been born into the monarchy.
Can the public have no expectation of privacy if they are in a public place?
In the case of Peck v UK, Mr Peck was captured on CCTV in a public street carrying a knife. He attempted suicide by slashing his wrists but he received medical assistance in time. Press releases were published with stills from the CCTV footage, it was reported in two local newpapers and a broadcast went out on local television, covering the story. Mr Peck was recognised by members of his family and friends. It was held that he had no general right to privacy under English Law under breach of confidence and so applied to the ECHR. His Article 8 rights had been infringed- not because he was carrying out a private act in a public place but because the story had been circulated without Mr Peck’s permission and he was not a public figure. The Court expressed a need for an English tort of privacy but it seems there is a reluctance to legislate for one.
In the case of Wainwright v The Home Office, Mrs Wainwright had visited her son in a prison in Leeds with her other son Alan who suffered from cerebral palsy. Both were strip-searched, man-handled and humiliated and suffered significant emotional distress afterwards. It was put to the House of Lords judges that under the Convention, a tort for breach of privacy should be recognised but this was rejected and the Wainwrights were forced to seek a remedy from the ECHR for breach of their Article 8 right to privacy.
Do celebrities have no legitimate expectation if they have put certain details of their private life into the pubic domain?
For example, Wayne Rooney recently after being sleeping with a prostitute was apparantly advised not to go down the injunction route because he had already acknowledged using the services of prostitutes in his auto-biography and therefore has put this aspect of his private life in the public domain.
Should a distinction be drawn between public interest and public benefit?
Do we waive out rights to privacy if we don’t apply privacy settings to our facebook accounts?
So far, text books have been an invaluable resource as they have served to clarify lengthy and sometimes impenetrable judgements and have helped to put the cases in the context of privacy and image rights, indicating the reasoning behind decisions and highlighting important lines of argument which tend to crop up or are consistently relied upon, across the spread of celebrity case law.
Searches on Westlaw UK and LexisNexis for ‘image rights’ unsurprisingly ‘returned too many results’ but served to reveal that an inordinately high percentage of cases seem to relate to sports personalities. Similarly, when I refined the search to journal articles, the vast majority were dedicated to ‘sports image rights’ across various jurisdictions. Searches including ‘celebrity’, ‘image’, ‘privacy’, ‘article 8’ and ‘human rights’, yielded a much more comprehensive list of reading material. The most relevant of these articles related to privacy rights of celebrities, notably those by Skinner, Callinan, Muller and Black. References and bibliographies provided by these journal writers were also of significant value and I now have an extensive list of journals to wade through in further research.
Aside from journal articles, case law has been the main focus of my research to date in the absence of a prescriptive legal framework on image rights. The cases I have focused on have involved the tort of passing off, breach of confidentiality, defamation and right to respect for private life under Article 8 of the ECHR.
Google searches have admittedly proved extremely helpful in starting off my research, if only to provide a basic overview on the law as it stands in regard to image rights and quick answers relating to terminology which crops up in the literature.
I am painfully aware that despite my best efforts, my choice of dissertation topic might appear superficial, lacking in substance and may seem like an excuse to indulge in the celebrity gossip and scandal of the day, whilst studiously avoiding the application of the law… This is not the case. In fact, my main interest regarding image rights is actually in relation to the ordinary person and the celebrity as a private individual- this is an area where research has proved difficult. There are certain locations where members of the public can reasonably be deemed to expect the presence of television cameras and press photographers, for example, public street parades, sports event and concerts. The context in which such footage or photographs are used however needs to be considered on a case by case basis to ensure that the privacy of the individual is not unreasonably encroached upon and that no inadvertent defamation occurs. Where filming or photography takes place in locations where cameras might not normally be expected, some form of notification should indicate their presence, giving the individual a right to object to the use of their image. In the absence of case law on the subject, the extent of a private individual’s legitimate expectation of privacy, particularly in a public place, is not clearly defined.
What is image- mimics?
There is a further difficulty in that largely what is conveyed by an image is true…..
Confidentiality necessary in the rights of others- ‘prescribed by law’- not necessarily statute, allowed for by la
Art.8- reputation and rights of others.
Balance is really balancing the exercise of the right to freedom of expression v the right to privacy.
Based in reputation and confidence.
HRA- came into force in 2002.
Princess Caroline case- von hannover- leading case- never sought out publicity- couldn’t help being born into the royal family.
Ruth Hickey- Sunday world- twink- David agnew case.- at what point is invasion of pivacy considered to be in the public interest??
Irish papers- 13 girls- facebook- to what extent waived you rights- public interest v public benefit
Ash v Mckennit
Prince Charles diaries
NA??= Baroness hale- implied duty of confidence
Pierce Morgan- this is a great day for lying drug taking divas……
GYM- PRIVATE PLACE. Do we not have a right to privacy if we are in a public place??
Andrea at na
Google maps- general vision
Is it not your image if you are not recognizable by it???
omio- european trademark association- david beckham, roger fedderer
max mosely- brought privacy case- english legislaure- no tort of privacy- stertching law to breaking point but must uphold convention rights
data protection commissioner co-signs letter to google
dataprotection- data must be obtained and for only for specified purpose
LEGITIMATE expectation of privacy
There is no statutory protection for image rights in English, Scottish or Irish law, despite the prevalence of ‘image’ in our culture, in a generation of tabloids and reality TV, iphones, wireless internet, twitter and CCTV. Whilst acknowledging the absence of protection, some writers have argued that it is neither required or justified; celebrities benefit financially, politicians are expected to withstand liberal use of their image and commentary on their private lives, participants on observational documentaries voluntarily waive their right to privacy, criminals deserve no right to privacy, intrusion on the private lives of celebrity role models is justifiable on public interest grounds.
Data protection is a rarely invoked form of image rights. Photographic or filmed images of individuals comprise ‘personal data’ to which the requirements of data protection legislation apply.
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